Protecting the rights of those affected and most vulnerable to HIV will create an environment in which stigma, violence and inequity will be lessened, thereby bringing the disease into the open and making it easier to treat and control. In India there is no law or statute that specifically addresses the issues that are raised in the HIV context. Both appellants and the judiciary make their complaints, decisions and rulings by extrapolation from a variety of law sources. Atiya Bose and Kajal Bhardwaj of the Lawyers Collective detail these sources of law

Human rights abuses in the HIV-age assume many shapes and forms and occur with unacceptable frequency and impunity — children are thrown out of schools, workers are removed from jobs, patients are refused treatment, healthcare workers are denied universal precautions, NGO interventions with sex workers and men who have sex with men are shut down, and women face increased neglect and violence.

HIV and AIDS have highlighted such vast inequities, violent abuse and widespread stigma, that human rights have been violated in a manner and on a scale rarely witnessed before in the public health sphere. The HIV epidemic cannot be looked upon as just a medical problem. It touches on the most personal behaviours and aspects of people’s lives, and its effect is felt in every sphere of a person’s life. Combating it therefore demands an approach that integrates social, cultural, economic and human rights perspectives.

In 1995, Dr Jonathan M Mann, former director of the World Health Organisation's Global Programme on AIDS argued for the centrality of human rights in addressing the HIV epidemic. Tracing the movement of HIV from white, gay men in the early to mid 1980s, to the point where its effect is now most seen in marginalised groups, be they minority and inner-city populations, injecting drug users or women, he noted that protecting the rights of those affected and most vulnerable to HIV will create an environment in which stigma, violence and inequity will be lessened, thereby bringing the disease into the open and making it easier to treat and control. Justice Michael Kirby of the Australian High Court has perhaps most eloquently articulated this principle: “The most important public health lesson emerging from the HIV/AIDS epidemic is that respecting and protecting the rights of those already exposed to HIV/AIDS and those most at risk is the most effective way to curb the rapid spread of the epidemic.”

Early legal responses to HIV in India

In the early days of HIV, when scientific and medical information about the disease and particularly about the modes of transmission was limited, public health legislation that was enacted to contain and control other contagious diseases were amended and modified to include HIV. For instance, a person living with HIV was required to inform the station master of his or her status and faced possible restrictions on travel by trains. To date, AIDS remains a notifiable disease in Mumbai. In India, states are empowered to legislate on health and several states have public health legislation that typically authorises the government to take whatever steps are necessary to contain a disease that is declared as notifiable; medical practitioners are required to report such cases to authorities. While we now know that HIV is a communicable but not a contagious disease, in those days this was still being debated in some circles. The government’s response was to isolate (read incarcerate) anyone who was HIV-positive in an effort to contain the disease.

India’s first HIV litigation arose when HIV-positive activist Dominic D'Souza was incarcerated in the late 1980s. D’Souza, a resident of Goa, was found to be HIV-positive when he donated blood at a Goa hospital. The test was performed without his knowledge or consent, and the results were revealed not to him, but to the local police.

D’Souza was subsequently arrested and confined in an unused TB sanatorium pursuant to the Goa, Daman and Diu Public Health Act, 1985, an amendment to which in 1986 authorised the State to mandatorily test any person for HIV and isolate them if they tested HIV-positive.

His mother, Lucy D’Souza, filed a writ petition before the Goa bench of the Bombay high court arguing that the provision in question violated her son’s fundamental rights under Articles 14 (Equality before the law), 19(1)(d) (Right to move freely within India) and 21 (Right to life and liberty) of the Indian Constitution since: (a) the provision for isolation was based on wrong scientific material and foundation (b) the object sought to be achieved by the Act (ie, to protect public health) was nullified by the isolation provision (c) the discretion to isolate a person was uncontrolled and unguided and (d) the provision for isolation was procedurally unjust and unfair in the absence of the right to a hearing.

In Lucy R. D'Souza v. State of Goa [AIR 1990 Bom 355] the high court recognised the serious consequences of the State’s policy to isolate, but held that the interest of public health supersedes an individual’s rights, and while isolation may not be ‘ideal’, it was ‘practical’. It also stated that the legislation was passed by authorities who had considered the available information and evidence about the disease and had determined that the isolation of an HIV-positive person was the correct course of action, and that there had been no violation of rights. (Although the Act in question still remains in the statute books, following the judgment, the government decided to stop implementing it; more recently it was reportedly amended.)

Dominic’s case highlighted several aspects of the laws that are related to the HIV epidemic beyond the application (or mis-application) of public health laws. Dominic was tested for HIV without his consent, his confidentiality was breached, and eventually, when he was released, he had lost his job.

The sources of law

Since that first case, violations of the rights of people living with or affected by HIV have increasingly come to light, many legal cases have been fought and won or lost, and many judgments have been pronounced by the courts. The HIV epidemic has thrown up myriad legal issues and the responses of the judiciary have been mixed. The framework of public health legislation is too limited and cannot be transposed to adequately cover HIV issues. Given this fact, and in the absence of any law or statute that specifically addresses the issues that are raised in the HIV context in India, both appellants and the judiciary have had to make their complaints, decisions and rulings by extrapolation from a variety of law sources.

• Constitutional Law: where the law is based on principles contained in the Indian Constitution. For example, removing someone from a job because they are HIV-positive is interpreted as a violation of their right to equality and even livelihood - both constitutionally protected fundamental rights.
• Common Law: refers to laws that are established by precedents or case law, or, in other words, by judgments previously made in similar cases. India is a common law country having inherited its legal system from the English.
• Statutory Law: are the written or codified laws of a country that are made by its legislature.
• Personal Law: comprises the laws that are a part of an individual’s religious code. These usually pertain to issues of marriage and property.

Before discussing some of the key legal issues and cases in the HIV context, it is useful to understand the difference between law, human rights, ethics and policy. As stated above, law may come from various sources but is ultimately enforceable in a court of law.

Human rights are the basic rights and freedoms that all human beings enjoy. These are enshrined in various international covenants and conventions, most notably the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. India is a signatory to these and various other conventions. Human rights are also reflected in the fundamental rights chapter of the Indian Constitution and the Supreme Court has held that provisions of an international convention or covenant, which elucidate and effectuate the fundamental rights guaranteed by the Indian Constitution, can be relied on by courts as facets of those fundamental rights and are hence enforceable as such. They have also been read as part of domestic law, as long as there is no inconsistency between the Convention and domestic law.

Ethics refer to a set of principles and guidelines by which certain professions are guided. This is particularly true for the medical profession. Often ethics are considered in the application of law – for instance, in determining whether a doctor has been negligent in his or her care of a patient, courts will consider medical ethics guidelines. In India, medical ethics are also represented in law such as the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.

Policies and administrative orders of the government are statements of government intent and action; these are, however, not enforceable in a court of law. For instance, India’s National AIDS Prevention and Control Policy (NAPCP) states in part that “…when human rights are protected, fewer people become infected and those living with HIV/AIDS and their families can better cope with HIV/AIDS. Government recognises that without the protection of human rights of people, who are vulnerable and afflicted with HIV/AIDS, the response to HIV/AIDS epidemic will remain incomplete.”

While the NAPCP supports an approach that ensures the protection of rights as a key element in successfully dealing with HIV/AIDS, it does not have the sanction of law. In other words, its directives, necessary though they may be, are unenforceable. So, while the NAPCP states that there should be no discrimination based on HIV, a person living with HIV who loses his/her job cannot approach a court of law on the basis of this policy.

Atiya Bose is media and communications officer and Kajal Bhardwaj is head of the technical and policy unit at the Lawyers Collective HIV/AIDS Unit. The Lawyers Collective HIV/AIDS Unit was set up in 1998 based on a realisation that law, policy and judicial action that upheld the human rights framework had a central role to play in effectively containing the HIV epidemic. The Unit comprises lawyers, law students and activists working in offices in Mumbai, Delhi and Bangalore, and offers free legal services to persons living with, affected by or vulnerable to HIV and undertakes advocacy and research initiatives related to law, rights and HIV.

© Lawyers Collective HIV/AIDS Unit www.lawyerscollective.org

InfoChange News & Features, February 2008